State v. Owen

Annotate this Case

88 S.E.2d 832 (1955)

242 N.C. 525


No. 721.

Supreme Court of North Carolina.

August 26, 1955.

*834 Atty. Gen. Harry McMullan, Asst. Atty. Gen. Ralph Moody and Gerald F. White, Raleigh, member of Staff, Womble, Carlyle, Sandridge & Rice, Winston-Salem, for the State.

Fred M. Parrish, Jr., Winston-Salem, for defendant.

JOHNSON, Justice.

Municipal power to enact and enforce a zoning regulation does not exist in the absence of statutory authorization. 58 Am.Jur., Zoning, Sec. 7. See also James v. Sutton, 229 N.C. 515, 50 S.E.2d 300; Rhodes, Inc. v. Raleigh, 217 N.C. 627, 9 S.E.2d 389, 130 A.L.R. 311; State v. Dannenberg, 150 N.C. 799, 63 S.E. 946. Therefore the validity of a zoning ordinance must be tested by the limitations of the enabling act. 122 Main Street Corporation v. City of Brockton, 323 Mass. 646, 84 N.E.2d 13, 8 A.L.R.2d 955. See also Harrington & Co. v. Renner, 236 N.C. 321, 72 S.E.2d 838.

The single question for decision here is whether the zoning regulation of the City of Winston-Salem is supported by enabling legislation adequate to make the ordinance enforceable against the defendant's property outside the corporate limits of the City.

First, we dismiss from consideration the provisions of Chapter 160, Article 14, of the General Statutes, which is the statewide enabling legislation from which municipalities derive the general power to enact zoning regulations. G.S. ยงยง 160-172 through 160-181.1. This legislation is inapplicable here for the reason that it nowhere makes provision for zoning beyond municipal corporate limits.

Next, it is noted that the charter of the City of Winston-Salem as it existed prior to the enactment of Chapter 677, Session Laws of 1947, nowhere authorizes zoning regulations beyond the corporate limits. True, as urged by the State, the charter of the City as rewritten in 1927 provides that "The ordinances now in force in the city * * *, and such as may hereafter be adopted, shall operate and have effect within one mile outside of the corporate limits of the city, * * *." However, when this provision, Section 116 of Chapter 232, Private Laws of 1927 is read in context, it is manifest that the legislative intent was merely to enlarge the territorial jurisdiction of the Municipal Court of the City and to authorize the police force of the City to execute criminal process within the extended area. The State's contention that this section of the charter impliedly confers upon the City the power to extend its zoning regulations one mile beyond the corporate limits is untenable.

This brings us to a consideration of Chapter 677, Session Laws of 1947, which is the enabling act under which the City endeavored to zone the property of the defendant. It is observed that this Act provides in Section 23 that "Wherever in this Act the City Planning Board or the Board of Aldermen of the City of Winston-Salem or the Board of Adjustment of the City of Winston-Salem are given authority in the territory outside of the corporate limits of the City of Winston-Salem, the exercise of such authority beyond one mile from the corporate limits of the City of Winston-Salem shall be subject to the approval of the Board of Commissioners of Forsyth County."

However, nowhere in this Act is the City of Winston-Salem or the County of Forsyth given authority to zone property *835 outside the corporate limits of the City. It is true the record discloses that the preliminary draft of the bill which as enacted became Chapter 677, Session Laws of 1947, contained two paragraphs in Section 23 which purported to confer upon the Board of Aldermen of the City of Winston-Salem the power to extend its zoning regulations three miles beyond the corporate limits. But these two paragraphs were omitted from the bill as finally enacted. Therefore, for want of legislative authority to zone beyond the corporate limits, the ordinance of the City, so far as it attempts to do so, was and is invalid.

While the paragraphs which were omitted from the Act of 1947 were inserted by subsequent amendatory act, Chapter 777, Session Laws of 1953, it is noted that there is no provision in the amendatory act which purports to validate the zoning ordinance. In the absence of such provision, the amendatory act of 1953 may not be treated as retrospective in the sense of validating the provisions of the pre-existing municipal ordinance. A municipal ordinance invalid under an enabling statute existing at the time of its enactment is not validated by mere amendment of the statute so that the ordinance might be validly enacted under the amended law. McGillic v. Corby, 37 Mont. 249, 95 P. 1063, 17 L.R.A.,N.S., 126; 37 Am. Jur., Municipal Corporation, Sec. 168. See also Frank J. Durkin Lumber Co. v. Fitzsimmons, 106 N.J.L. 183, 147 A. 555; Borshesky v. Board of Works, 8 N.J.Misc. 386, 150 A. 237; Frelinghuysen v. Town of Morristown, 77 N.J.L. 493, 72 A. 2. Here the record discloses no subsequent ordinance purporting to activate the original zoning regulation as to property outside the corporate limits. Indeed, the State rested its case below, and here as well, on the original ordinance of 21 December, 1948. Since the pre-existing zoning ordinance was neither activated as to property outside the city limits by the amendatory legislative act nor by amendatory ordinance of the Board of Aldermen, the ordinance is unenforceable as against the defendant's property. The judgment below will be upheld.

No error.